militaryinterventionsagainstisiliniraq, … · syriaandlibya,andthelegalbasisof consent karine...

Leiden Journal of International Law (2016) 29 pp 743ndash775Ccopy Foundation of the Leiden Journal of International Law 2016 doi101017S0922156516000303

Military Interventions against ISIL in IraqSyria and Libya and the Legal Basis ofConsent

K A R I N E B A N N E L I E R-C H R I STA K I Slowast

AbstractThe legal argument of intervention by invitation has been used by all 11 states intervening inIraq (nine members of the US-led coalition Russia and Iran) by Egypt for its airstrikes againstISIL in Libya and by Iran and Russia for their interventions in Syria To the extent that theseconsensual military interventions targeted ISIL and other UN-designated terrorist groupstheir legality has not been challenged by any state Strong criticisms marked nonethelessmilitary operations undertaken by invitation but not targeting lsquoterrorist groupsrsquo such as thealleged Russian strikes against the lsquoSyrian moderate oppositionrsquo The arguments advanced byintervening states seem to confirm the purpose-based approach of intervention by invitationThey did not claim a lsquoright to intervene in a civil warrsquo but relied on the existence of both arequest by the government and a legitimate purpose fighting ISIL and other terrorist groupsThe different reactions also show unwillingness by the international community to recognizea general right of intervention in a civil war Turning to the strikes of the US-led coalition inSyria it is impossible to rely on the legal basis of lsquointervention by invitationrsquo The controversialtheory of lsquopassive consentrsquo could be used to some extent ndash but not after September 2015 whenSyria denounced these strikes as a lsquoflagrant violationrsquo of its sovereignty The current efforts ofthe international community to find consensual solutions to the dramatic conflicts in SyriaLibya and Iraq could offer new possibilities of consensual interventions against ISIL and otherterrorist groups

Key wordsconsent intervention self-determination terrorism use of force

1 INTRODUCTION

The recent history of military interventions is full of invocations of the argumentof invitation or consent as a legal basis for external intervention During recentyears invitation or consent of different kinds and forms have been invoked validlyor not in order to justify the intervention of France in Mali the US drone strikesin Pakistan and Afghanistan Russiarsquos intervention in Ukraine the Saudirsquos coalitionintervention in Yemen and of course the strikes against the Islamic State of Iraqand the Levant (ISIL)1 in Iraq Syria and Libya Intervention on the basis of consentthus becomes a common legal argument to justify military intervention ndash almost as

lowast Associate Professor of International Law Centre for International Security and European Studies (CESICE)University Grenoble-Alpes [karinebannelier-christakisuniv-grenoble-alpesfr]

1 Also called ISIS (Islamic State of Iraq and Syria) or Daesh

httpswwwcambridgeorgcoreterms httpsdoiorg101017S0922156516000303Downloaded from httpswwwcambridgeorgcore IP address 5439106173 on 04 Sep 2020 at 032314 subject to the Cambridge Core terms of use available at

744 K A R I N E B A N N E L I E R-C H R I STA K I S

common as self-defence The use of this argument raises important problems andnot only in relation to the legitimacy of the inviting government or the validity ofconsent

This article will focus on the multiple external interventions in Iraq Libya andSyria The objective will be twofold On the one hand I will assess if consent is avalid and sufficient legal basis for the multiple interventions undertaken by differentcountries on the territory of these states since August 2014 On the other hand I willexamine what is the influence of these cases in relation to the evolution of some legalprinciples such as volenti non fit injuria or the principle of non-intervention in civilwar and internal strife Before undertaking this research it is necessary to note somemethodological difficulties linked to the complexity of the conflicts (Section 11)and to recall the legal framework of intervention by invitation against which thepresent analysis will be conducted (Section 12)

11 Methodological difficulties linked to the complexity of the conflictsThe task of this article is far from easy for at least three reasons Firstly as moreand more jihadi groups in different countries aligned themselves with or pledgedallegiance to ISIL2 the global fight against the terrorist group expanded raisingissues of consent in other cases of intervention such as in Afghanistan3 Withoutneglecting the phenomenon of intervention against ISIL-affiliated groups in othercountries this article will focus on the interventions in Iraq Syria and Libya whereISIL is particularly strong and was able to establish territorial control over portionsof the territories of these three states

Secondly the situation in Iraq Syria and Libya is evolving constantly and veryrapidly This article covers developments of the situation as far as possible up to 3February 2016

Thirdly even by introducing such geographical and time limits to this researchthe task remains highly complicated because of the extreme complexity of theconflicts and external interventions in Iraq Syria and Libya The Syrian civil warfor example has raged for more than five years killing 250000 people and dis-placing from their homes 11 million others and is underpinned by a particularlycomplex pattern of alliances and enmities4 What started as anti-government andpro-democracy protests in March 2011 quickly escalated into a full-scale civil warbetween forces loyal to President Bashar al-Assad and rebels opposed to his rule whothemselves are divided into various factions It is against this chaotic backgroundthat ISIL was able to spread and conquer several Syrian cities On an international

2 lsquoFrom Syria to Bosnia Isis and its affiliates around the worldrsquo The Guardian 3 July 2015 available atwwwtheguardiancomworld2015jul03isis-and-affiliates-around-the-world

3 In January 2016 the USA carried out at least a dozen operations including commando raids andairstrikes against militants in Afghanistan aligned with ISIL (several thousand are estimated to bepresent in this country) The intervention took place with the consent of the government and thePresident of Afghanistan Ashraf Ghani thanked the USA See lsquoUS Broadens Fight Against ISISWith Attacks in Afghanistanrsquo The New York Times 31 January 2016 available at wwwnytimescom20160201uspoliticsus-broadens-fight-against-isis-with-attacks-in-afghanistanhtml_r=0

4 See for example lsquoWho backs whom in the Syrian conflictrsquo The Guardian 2 December 2015 available atwwwtheguardiancomworldng-interactive2015oct09who-backs-whom-in-the-syrian-conflict


M I L I TA RY I N T E RV E N T I O N S AGA I N ST I S I L I N I R AQ SY R I A A N D L I BYA 745

scale the conflict has often been described as a lsquoproxy warrsquo between regional andother powers Iran Hezbollah Shia armed groups from other countries (such asAfghanistan) and since September 2015 Russia backed the Syrian regime whilefighting ISIL Sunni Gulf states backed the rebels and have also joined the US-ledcoalition against ISIL Turkey has sided with the Gulf states and joined the US-ledcoalition as well while nonetheless trying to prevent Syriarsquos Kurds (an ally of West-ern states in the fight against ISIL) from advancing their self-determination claimsWestern states have also constantly asked for the removal of Bashar al-Assad butwhile undertaking massive intervention against ISIL they often found themselvesconstrained by conflicting aims and allegiances doubts about the lsquomoderatersquo charac-ter of some rebel groups and fears of being dragged deeper into the Syrian quagmireAgainst this background it is impossible to undertake a single unified research ofthe problem of intervention by invitation The extreme complexity of the conflictsrequires a very cautious research approach in order to distinguish carefully differentissues and directions and to isolate clinically each different claim of intervention byinvitation To this complexity of the conflicts one should also add the complexity ofthe legal framework and the controversies surrounding intervention by invitation

12 The legal framework The purpose-based approach to intervention byinvitation

The limited space of this article does not permit detailed reproduction of the complextheoretical issues and legal arguments concerning the problem of intervention byinvitation I will thus just very briefly present some basic elements of the legaldebate

International legal scholarship is profoundly divided on the legality of interven-tion by invitation in a case of a civil war Based on a famous dictum by the InternationalCourt of Justice in 19865 some scholars consider that if valid consent is given by arepresentative and a still effective government intervention by invitation is alwayslegal and there is no prohibition of invited intervention in a civil war The author ofthe present article has maintained since 2004 a different view External interventionby invitation is normally unlawful when its objective is to settle an exclusivelyinternal political strife in favour of the established government Military assistanceon request can nonetheless be perfectly legal when the purpose of the interventionis to realize other objectives including the joint fight against terrorism6

The starting point of this purpose-based approach is that the dictum of the Inter-national Court of Justice cannot be read as a general license to intervene on the basisof consent The fact that such intervention by invitation is allowable does not meanthat it is authorized in all circumstances The main obstacle to the admissibility of

5 lsquoIt is difficult to see what would remain of the principle of non-intervention in international law if inter-vention which is already allowable at the request of the government of a State were also to be allowed atthe request of the oppositionrsquo Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA)Merits Judgment of 27 June 1986 [1986] ICJ Rep 14 para 246

6 For a detailed analysis of legal arguments and state practice see T Christakis and K Bannelier lsquoVolenti non fitinjuria Les effets du consentement a lrsquointervention militairersquo (2004) 50 Annuaire Francais de Droit International102 K Bannelier and T Christakis lsquoUnder the UN Security Councilrsquos Watchful Eyes Military Interventionby Invitation in the Malian Conflictrsquo (2013) 26 Leiden Journal of International Law 855



intervention by invitation is the principle of self-determination understood as lsquotheright of the people of a State to choose its own government without external inter-ventionrsquo7 It is generally recognized that the principle of self-determination does notapply only in cases of decolonization or unlawful military occupation but also givesthe right to a people that already forms a state to maintain its political independ-ence with regard to third states and to choose its own government with no outsideinterference or intervention This dimension of the principle of self-determinationwas clearly expressed for example in Common Article 1 of the two UN Covenantsof 1966 (lsquoAll peoples have the right of self-determination By virtue of that right theyfreely determine their political statusrsquo) or in UN General Assembly Resolution 2625(XXV) which famously stated that lsquo[b]y virtue of the principle of equal rights andself-determination of peoples enshrined in the Chapter of the UN all peoples havethe right to determine without external interference their political statusrsquo8 Focusingon this interpretation of the principle of self-determination also confirmed by otherUN General Assembly resolutions9 several scholars concluded that lsquoan internalchallenge to the authority of a government cannot be arbitrated by a foreign statersquo10

and that in case of civil war lsquothe settled governmentrsquos position is legally neitherbetter nor worse vis-a-vis third States than the one of the insurgentsrsquo11 One of themost famous contributions in favour of the prohibition of intervention in civil warswas a book published in 1974 by now Judge of the International Court of Justice MBennouna12 Just a year later the Institut de droit international (hereinafter lsquothe IDIrsquo)sided with his view The IDI adopted at its 1975 Wiesbaden session the resolutionon the principle of non-intervention in civil wars which articulated a very broadand clear-cut prohibition of intervention in civil wars including interventions onrequest of the government13 Several other scholars from Doswald-Beck14 to Gray15

Corten16 or to a lesser extent Nolte17 also concluded in favour of the idea that theprinciple of self-determination creates serious legal impediments to the possibility

7 J Crawford The Creation of States in International Law (2006) 1148 Emphasis added The preparatory works of this resolution showed that the specific issue of intervention by

invitation of the government in a civil war was discussed during the debates and several states insisted thatsuch an intervention would be unlawful See Nations Unies Annuaire Juridique (1968) 130ndash1 O Corten TheLaw Against War (2010) 290

9 For example Respect for the principles of national sovereignty and non-interference in the internal affairs of States in theirelectoral processes UN Doc ARES54168 25 February 2000 para 1 See also Declaration on the Inadmissibilityof Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty UN DocARES 2131(XX) 21 December 1965 para 2 lsquono State shall organize assist foment finance incite or toleratesubversive terrorist or armed activities directed towards the violent overthrow of the regime of anotherState or interfere in civil strife in another Statersquo

10 J Noel Le principe de non-intervention Theorie et pratique dans les relations inter-americaines (1981) 14311 C Chaumont Cours general de droit international public (1970) 40612 M Bennouna Le consentement a lrsquoingerence dans les conflits internes (1974)13 IDI The Principle of Non-Intervention in Civil Wars Resolution Session of Wiesbaden (1975) According to Art

2 lsquoThird States shall refrain from giving assistance to parties to a civil war which is being fought in theterritory of another Statersquo

14 L Doswald-Beck lsquoThe Legal Validity of Military Intervention by Invitation of the Governmentrsquo (1985) 56British Yearbook of International Law 189 at 251

15 C Gray International Law and the Use of Force (2008) 8116 Corten supra note 8 at 289 ff17 G Nolte Eingreifen auf Einladung (1999) 638 See also G Nolte lsquoIntervention by Invitationrsquo Max Planck

Encyclopedia of Public International Law para 20



of intervention by invitation The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia also endorsed in 2009 what it calledthe lsquonegative equalityrsquo principle18 The 2011 IDI Rhodes resolution on military as-sistance on request also indicated that self-determination could be violated evenin situations below the threshold of non-international armed conflict renderingexternal assistance illegal19

This does not mean however that intervention by invitation is unlawful in allcases of internal strife If the purpose of the intervention on request of the governmentdoes not violate the principle of self-determination then normally such interventionis legal A purpose-based approach is thus necessary State practice shows that thelegality of intervention by invitation (even in cases of civil war) has never raisedproblems when the purpose of such consensual intervention was clearly limitedto the realization of other objectives such as the fight against terrorism the fightagainst rebels who use the territory of the neighbouring state as lsquosafe havenrsquo tolaunch attacks against the intervening state the protection of nationals abroad theliberation of hostages the protection of critical infrastructure the joint fight againstdrug smugglers and other criminals and more generally support to the governmentto maintain law and order and the deployment of lsquopeacekeeping operationsrsquo Thelegality of counter-intervention when the rebels receive substantial outside supportis also generally recognized20

The applicability of these lsquoexceptionsrsquo raises delicate issues of course and requiresdifficult and subjective judgments regarding the existence of the lsquolegitimate pur-posersquo invoked by the inviting and the intervening state The purpose of lsquofightingterrorismrsquo which is at stake in relation to the interventions in Syria Iraq and Libyaautomatically raises the problem of the definition of terrorism and the questionof who can decide that a specific group is a terrorist group It is well known thatestablished governments often try to portray their opponents as lsquoterroristsrsquo in orderto de-legitimate them politically and be legally able to request external help againstthem The Syrian government for instance in its letters to the UN Security Councilseems to consider that almost all groups opposing government forces should beconsidered as lsquoterrorist groupsrsquo21

This is a very important issue to analyze in relation to the Russian interventionin Syria (Section 413) For the time being it suffices to make two brief observationsFirst even if the difficulties in the implementation of the exceptions proposed by

18 According to which both the government and the rebels are equally unable to invite outside assistance SeeG Fox lsquoIntervention by Invitationrsquo in M Weller (ed) The Oxford Handbook of the Use of Force in InternationalLaw (2015) 827

19 Art 3 lsquoMilitary assistance is prohibited when it is exercised in violation of the Charter of the United Nationsof the principles of non-intervention of equal rights and self-determination of peoples and generally acceptedstandards of human rights and in particular when its object is to support an established government against its ownpopulationrsquo (emphasis added)

20 See Christakis and Bannelier supra note 6 at 120ndash37 Corten supra note 8 at 290 ff21 See for example UN Doc S201680 28 January 2016 Identical letters dated 26 January 2016 from the Charge

drsquoaffaires ai of the Permanent Mission of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council condemning lsquothe bloody crimes and massacres committed byarmed terrorist groups including Islamic State in Iraq and the Levant (ISIL) the Nusrah Front the Army ofIslam the Islamic Front the Army of Conquest Ahrar al-Sham and the Free Armyrsquo



the purpose-based approach must be clearly acknowledged the solution to thesedifficulties cannot be to authorize intervention by invitation in all cases againstall groups Arguably it is preferable to undertake the hard task of identifying ona case-by-case basis if a claim that a rebel group is lsquoterroristrsquo is acceptable for theinternational community rather than opting for a solution that will give foreignpowers a license to target after invitation of a regime all opposition groups Secondlythe identification of the lsquoterrorist groupsrsquo to be targeted raises no problem at allwhen it is the result of collective determination by the UN Security Council or otherconsensual mechanisms In the case of the French intervention in Mali in 2013 forinstance all three groups targeted by France were clearly depicted as lsquoterroristrsquo by theUN Security Council In the case of Syria Iraq and Libya too the UN Security Councilclearly labels as lsquoterroristsrsquo the ISIL the Al-Nusrah Front lsquoand all other individualsgroups undertakings and entities associated with Al-Qaidarsquo while also declaring itsreadiness to add other groups to the list There is thus no doubt about the fact thatsome groups targeted in Syria Iraq and Libya are clearly lsquoterroristrsquo groups

This purposed-approach has been challenged by some scholars22 who arguedthat the prohibition of intervention by invitation in internal strife is lsquoinconsistentwith State practicersquo23 In a recent study G Fox focused mainly on the acceptance ofthe legality of French military intervention in support of the beleaguered Maliangovernment in 2013 According to him despite the existence of a civil war lsquonoState raised the negative equality principle or spoke in opposition to the Frenchinterventionrsquo and thus lsquothe Mali episode demonstrates that the internationalcommunity has not in fact acceptedrsquo the negative equality principle24

This argument cannot be sustained As shown elsewhere Mali is clearly a pre-cedent in favour of the prohibition of intervention by invitation in internal strifeand the purpose-based approach25 This was consistent with the official positiontaken by France in 1990 against intervention in favour of established governmentsin civil strife and with other recent cases involving France such as in Ivory Coast

22 LC Green lsquoLe statut des forces rebelles en droit internationalrsquo (1962) 66 Revue Generale de Droit InternationalPublic 5 at 17 JH Leurdijk lsquoCivil War and Intervention in International Lawrsquo (1977) 24 Netherlands Inter-national Law Review 143 at 159 A Tanca Foreign Armed Intervention in Internal Conflict (1993) 26 C Le MonlsquoUnilateral Intervention by Invitation in Civil Wars the Effective Control Test Testedrsquo (2003) 35 InternationalLaw and Politics 741 at 742 A Kassim Allo lsquoCounter-Intervention Invitation Both or Neither An Appraisalof the 2006 Ethiopian Military Intervention in Somaliarsquo (2009) 3 Mizan Law Review 201 at 215 E LieblichInternational Law and Civil Wars Intervention and Consent (2013) 122ndash52 Y Dinstein Non-International ArmedConflicts in International Law (2014) 76 ff Fox supra note 18 at 835 L Visser lsquoRussiarsquos Intervention in SyriarsquoEJIL Talk 25 November 2015 available at wwwejiltalkorgrussias-intervention-in-syria

23 D Akande and Z Vermeer lsquoThe Airstrikes against Islamic State in Iraq and the Alleged Prohibition on MilitaryAssistance to Governments in Civil Warsrsquo EJIL Talk 2 February 2015 available at wwwejiltalkorgthe-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars

24 Fox supra note 18 at 828ndash9 See also Visser supra note 22 who shares this view25 Indeed France explained that the purpose of the invitation was to lsquosupport Malian units in combating

th[e] terrorist elementsrsquo in Mali France made a clear distinction between the three organizations listed aslsquoterroristsrsquo by the UN Security Council (AQIM MUJAO and Ansar Dine) on the one hand and the NationalMovement for the Liberation of Azawad (MNLA) a group fighting for the rights of Malirsquos minority Tuaregcommunity and initially seeking independence for lsquoAzawadrsquo (the North of Mali) France declared from theoutset that lsquothere will be no action against the Tuaregrsquo and respected this line throughout the interventionwhile the rebels of the MNLA welcomed the French intervention and helped France Bannelier and Christakissupra note 6 at 866ndash7



in 2002 or in Central African Republic in 201226 More generally the argument oflsquoinvitationrsquo or lsquoconsentrsquo has been used dozens of times in state practice in order toprovide legal justification to various external interventions But in the overwhelm-ing majority of cases states which carry out such military interventions take allnecessary precautions to convince others that their action should not be regarded asan intervention in a civil war Intervening states try either to minimize the purposeof their action claiming for example that their only purpose is to lsquoprotect theirnationalsrsquo to lsquomaintain orderrsquo to help calm down a simple lsquomutinyrsquo or to help thefight lsquoagainst terroristsrsquo or on the contrary they try to maximize the causes of theirintervention by claiming that there was lsquoexternal aggressionrsquo against the invitingstate or a case of counter-intervention27 Whatever the reality on the ground andtheir sometimes hidden intentions lsquoStates do not claim a right to help a governmentthat makes an appeal for aid to put down a rebel movement in a civil warrsquo theylsquonever assume a right to intervene in any purely internal conflictrsquo28

The Saudi-led coalitionrsquos intervention in Yemen initiated on 26 March 2015 couldbe used to challenge the prohibition of intervention by invitation in internal strifeDespite its magnitude and despite the fact that it took place against the backgroundof a civil war and without UN Security Council authorization this intervention lsquometwith approval or at least acquiescence from a considerable number of States withonly few critical voicesrsquo (mainly Iran)29 However from an opinio juris point of view itis interesting to note that in its letter of justification sent to the UN Security Councilthe Saudi coalition does not claim a right to intervene in a civil war on the basisof consent but tries to lsquomaximizersquo the situation by saying that the Houthi militiaslsquoare supported by regional forcesrsquo and this is therefore a case of lsquoaggressionrsquo30 Thiscase and some other problematic cases31 show nonetheless that the debate overintervention in civil war in general is far from over32

13 Aims of this articleWhile not neglecting the complexity of the legal debate and of other precedentsthis study will focus exclusively on the use of the argument of intervention byinvitation in relation to the conflicts in Iraq Libya and Syria Section 2 will argue

26 Ibid at 863ndash427 Christakis and Bannelier supra note 6 at 127 ff Bannelier and Christakis supra note 6 at 863 For an analysis

of state practice see also Doswald-Beck supra note 14 at 189 ff Nolte supra note 17 Gray supra note 15 at81 ff Corten supra note 8 at 276 ff

28 Conclusions of Corten supra note 8 at 290 and 306 after a detailed analysis of state practice29 T Ruys and L Ferro lsquoWeathering the Storm Legality and Legal Implications of the Saudi-led Milit-

ary Intervention in Yemenrsquo (not yet published) International and Comparative Law Quarterly available atpapersssrncomsol3paperscfmabstract_id=2685567 at 1

30 UN Doc S2015217 27 March 2015 Identical letters dated 26 March 2015 from the Permanent Representative ofQatar to the United Nations addressed to the Secretary-General and the President of the Security Council at 5

31 Such as the intervention by invitation in Bahrain of the Gulf Cooperation Council led by 1000 troops fromSaudi Arabia and 500 troops from UAE that helped the government of Bahrain to crush the popular uprisingin March 2011 For an analysis of this case see O Corten La rebellion et le droit international Le principe deneutralite en tension (2015) at 161ndash4

32 In his recent book supra note 31 Corten highlighted the important tensions surrounding the legal regimeof insurrection in international law See also G Vidigal lsquoEJIL Live Joseph Weiler and Anne Orford Dis-cuss Intervention in Civil Warrsquo EJIL Talk available at wwwejiltalkorgejil-live-joseph-weiler-and-anne-orford-discuss-intervention-in-civil-war



that intervention by invitation has been recognized as the sole valid legal basis forall foreign interventions in Iraq and that all of them confirm the purpose-basedapproach of intervention Section 3 will show that to the extent that the argumentof intervention by invitation has been used for some foreign interventions in Libyait was also compatible with the purpose-based approach Far from declaring a rightto intervene in the Libyan civil war NATO the EU and 23 states informally involvedwith the fight against ISIL in Libya posed as a condition for military assistanceon request the formation of a national unity government and the end of the civilwar Section 4 will argue that Russia and Iran based their interventions in Syriaon the legal basis of consent and despite the problems these interventions do notchallenge the purpose-based approach of intervention It is nonetheless impossiblefor the time being to use the doctrine of lsquointervention by invitationrsquo as a legal basisfor the strikes of the US-led coalition in Syria even if we try to rely on a controversiallsquopassive consentrsquo theory

2 INTERVENTION IN IRAQ A CONFIRMATION OF THEPURPOSE-BASED APPROACH

Intervention by invitation is clearly the undisputable legal basis used by differentstates and coalitions in order to undertake military action in Iraq (Section 21) Theimportance of this legal basis is also highlighted by the international reactions tothe military activities undertaken in Iraq by Turkey without the consent of theIraqi government (Section 22) Having established that consent is the legal basis formilitary intervention in Iraq it remains to be examined if the case of Iraq confirmsthe lsquopurpose-based approachrsquo or if it could be used instead as a precedent by thepartisans of a general right to intervention by invitation in civil war (Section 23)

21 The clear and undisputable legal basis of consentSince 2014 the internationally recognized government of Iraq has authorized severalstates to undertake military action against ISIL on its territory All these externalinterventions do not raise any legal problems from a jus contra bellum point of viewIndeed consent seems to be a sufficient legal basis to justify these interventions andno state raised any legal objection

Throughout 2014 (a year during which ISIL captured some important areas in Iraqincluding Mosul) the Iraqi government issued several requests for lsquothe assistanceof the international communityrsquo to help lsquodefeat ISIL and protect our territory andpeoplersquo from the growing threat posed by this terrorist organization33 Respondingto this call a US-led coalition started airstrikes against ISIL in Iraq on 8 August2014 President Obama insisted on the fact that this action was taken lsquoat the request

33 UN Doc S2014440 25 June 2014 Letter dated 25 June 2014 from the Permanent Representative of Iraq to theUnited Nations addressed to the Secretary-General



of the Iraqi governmentrsquo and in order to lsquohelp forces in Iraqrsquo to combat a terroristorganization using barbaric methods34

Since that date and up to 3 February 2016 the US-led coalition has conducted atotal of 6763 airstrikes against ISIL in Iraq35 According to the official US webpageon Operation Inherent Resolve the following nine states have participated the USAustralia Belgium Canada Denmark France Jordan The Netherlands and theUnited Kingdom36 While some other countries have provided logistical support orhave joined the coalition effort to build partner capacity in Iraq these countries havenot yet undertaken military action in Iraq under the US-led (and Iraq authorized)coalition37

Iraq has clearly affirmed several times that the airstrikes by this US-led coalitionwere taking place on the basis of its lsquoexpress consentrsquo In a letter sent to the Presidentof the UN Security Council in September 2014 for instance Iraq emphasized that

in accordance with international law and the relevant bilateral and multilateral agree-ments and with due regard for complete national sovereignty and the Constitutionwe have requested the United States of America to lead international efforts to strikeISIL sites and military strongholds with our express consent38

No state has ever challenged the validity of this request or the legal basis of interven-tion by invitation On the contrary this request has been used in order to providelegal justification not only for the intervention in Iraq but also for the interventionagainst lsquothe serious threat of continuing attacks from ISIL coming out of safe havensin Syriarsquo39

Parallel to the strikes of the US-led coalition in Iraq the Iraqi government hasalso authorized some other states to intervene on its territory and once againdespite political objections the legal basis of intervention by invitation has notbeen challenged by any state

While the Iranian intervention in Iraq led to political reactions from some coun-tries fearful of the regional aspirations of Iran no state raised any objections aboutthe legality of Iranian intervention justified both by Iraq and Iran on the basis of validconsent and the fight against terrorism (the two countries even signed a militarypact to combat ISIL on 31 December 2014)40

34 Statement by the President The White House 7 August 2014 available atwwwwhitehousegovthe-press-office20140807statement-president

35 See Operation Inherent Resolve Targeted Operations Against ISIL Terrorists US Department of Defenseavailable at wwwdefensegovNewsSpecial-Reports0814_Inherent-Resolve

36 Ibid37 For the case of Turkey see Subsection 22 infra38 UN Doc S2014691 22 September 2014 Letter dated 20 September 2014 from the Permanent Representative of

Iraq to the United Nations addressed to President of the UNSC at 239 UN Doc S2014695 23 September 2014 Letter dated 23 September 2014 from the Permanent Representative of the

United States of America to the United Nations addressed to the Secretary-General40 lsquoIran in new deal to boost Iraq armyrsquo Mail Online 31 December 2014 available at

wwwdailymailcoukwiresafparticle-2892238Iran-new-deal-boost-Iraq-armyhtml See also the interviewof the Iranian President in Le Monde 30 December 2016 confirming that Iranian troops assist Iraq on thebasis of its consent



In a similar way despite the fact that the US expressed its hostility to any Russianintervention in Iraq41 it did not challenge Russiarsquos right to do so after Iraq authorizedRussia to intervene against ISIL on its territory on 23 October 201542

Finally it is interesting to mention that while the UN Security Council heldseveral meetings concerning the situation in Iraq and even adopted a resolutionconcerning this country specifically on 29 July 2015 at no time did the UN SecurityCouncil authorize the use of force in Iraq under Chapter VII of the UN CharterThe UN Security Council lsquourge[d] the international community in accordance withinternational law to further strengthen and expand support for the Government ofIraq as it fights ISIL and associated armed groupsrsquo43 This combined with the factthat no state ever criticized the consensual military operations against ISIL on theterritory of Iraq seems to indicate that we are probably in front of a case similar tothe lsquoMali precedentrsquo when the French intervention by invitation took place withouta UN Security Council authorization but with its blessing and relief44

22 Consequences of the absence of consent The case of Turkish incursionsThe importance of consent as a legal basis for military intervention in Iraq is alsohighlighted by the international reactions to a case of military intervention wherethis consent was absent the unauthorized incursion and activities of Turkish forcesinto Iraqi territory

Although Turkey provides facilities for the US led-intervention against ISIL inIraq it has not participated in any airstrikes in Iraq Moreover a coalition spokesmanrecently said that the deployment of Turkish military forces in Iraq was not a partof the US-led coalition45

Iraq protested several times about what it perceived as violations of its sovereigntyby Turkish armed forces46 But it was mainly the decision of Turkey to deploy on 3December 2015 what Iraq called lsquohundreds of soldiers and a number of tanks andarmoured vehiclesrsquo47 near the city of Mosul some 110 kilometres into Iraqi territory

41 Reportedly the US has told Iraqrsquos leaders that lsquothey must choose between ongoing American sup-port in the battle against militants of ISIS and asking the Russians to intervene insteadrsquo SeelsquoUS to Iraq If Russia helps you fight ISIS we canrsquotrsquo CBS News 21 October 2015 available atwwwcbsnewscomnewsus-iraq-chose-between-american-and-russian-airstrikes-in-isis-fight

42 More precisely Iraq authorized Russia to lsquotarget Islamic State group convoys coming from Syriarsquo See lsquoIraqauthorizes Russia to strike Islamic State inside countryrsquo Middle East Eye 24 October 2015 available atwwwmiddleeasteyenetnewsiraq-authorises-russia-strike-islamic-state-inside-country-1869786714

43 UN Doc SPRST201420 19 September 2014 Statement by the President of the Security Council See also UN DocSRES2233 29 July 2015 For the effects of UN Doc SRES2249 of 20 November 2015 see infra note 152

44 For an analysis of the lsquoMali precedentrsquo see K Bannelier and T Christakis supra note 6 at 867ndash8 where it isargued that the UN Security Council welcomed the swift action by the French forces but did not rush toreplace the unilateral legal basis of the intervention (request of the Malian authorities) by a clear multilateraluse of force mandate

45 lsquoTurkey Not Part of US-Led Coalition in Iraq - Coalition Spokesmanrsquo Sputnik Interna-tional 2 February 2016 available at sputniknewscommiddleeast201602021034091107turkey-us-led-coalition-iraqhtmlixzz3zUitAmx1

46 UN Doc S2015723 25 September 2015 Note verbale dated 16 September 2015 from the Permanent Mission of Iraqto the United Nations addressed to the Secretary-General protesting against various lsquoviolations of Iraqi airspacecommitted by Turkish aircraft since the start of the current yearrsquo and lsquocondemn[ing] the infiltration of Iraqiterritory by a number of Turkish military unitsrsquo

47 UN Doc S2015963 14 December 2015 Letter dated 11 December 2015 from the Permanent Representative of Iraqto the United Nations addressed to the President of the Security Council



that led to a very strong reaction by the Iraqi government In a letter to the UNSecurity Council Iraq emphasized that

Those actions were taken without prior coordination or consultation with the federalGovernment of Iraq and are therefore in flagrant violation of the provisions and principles ofthe Charter of the United Nations They also violate the territorial integrity and sovereignty ofthe Iraqi State Those military movements are an act of aggression under the Charterand the relevant provisions of international law48

In the same letter Iraq mentioned its previous letters to the UN Security Counciland official legal positions about the necessity of consent for any intervention onits territory and stressed that it lsquorejects strenuously opposes and condemns in thestrongest possible terms any military movements aimed at countering terrorismthat take place without prior consultation with the federal Government of Iraq andwithout its approvalrsquo49 In a similar way the Iraqi Minister for Foreign Affairs pro-tested strongly against these Turkish incursions during a meeting of the UN SecurityCouncil emphasizing that lsquoIraq rejects any military movements of a counter-terroristnature without the knowledge and prior approval of the Iraqi federal authoritiesrsquo50

Responding to these accusations Turkey tried to downsize the importance of theevent describing the deployment of these troops as a lsquoroutine rotationrsquo in a trainingprogram for Iraqi forces and aimed to protect Turkish trainers working with anti-ISIL groups51 Turkey mentioned a lsquomiscommunication with the Government ofIraqrsquo over these deployments and lsquoreiterate[d] its support for Iraqrsquos sovereignty andterritorial integrityrsquo52 The representative of Turkey in the UN Security Councilargued that lsquo[b]ecause we are extremely sensitive in matters concerning our ownsovereignty and territorial integrity we treat others the way we want to be treatedrsquo53

Therefore it is interesting from a legal point of view to note that instead ofadvancing another legal basis to justify the incursion of its troops on Iraqi territoryTurkey spoke about a lsquomiscommunicationrsquo concerning a lsquoroutine operationrsquo withinthe framework of the lsquomilitary assistancersquo that Turkey lsquohas extended to Iraq sincethe beginning of the Daesh occupation of Mosulrsquo upon the request of the IraqiGovernment54

While the UN Security Council took no action after this meeting several elementsindicate that Turkeyrsquos incursion in Iraq without the consent of its government metwith strong reactions During the meeting of the UN Security Council the Under-Secretary-General for Political Affairs J Feltman lsquourge[d] all Member States involvedin the fight against ISIL in Iraq to do so in a manner that is consistent with the Charterof the United Nations and that respects the sovereignty and territorial integrity

48 Ibid (emphasis added)49 Ibid50 UN Doc SPV7589 18 December 2015 The situation concerning Iraq at 351 lsquoObama to Erdogan Withdraw Turkish troops from Iraqrsquo Press TV 19 December 2015 available at

21721867231Detail20151219442304US-Turkey-Obama-Erdogan-Turkish-troops-Iraq52 See the Official Communique of the Turkish MFA available at wwwmfagovtrno_-313_-19-december-

2015_-press-release-regarding-the-bashiqa_zelikan-training-campenmfa53 Supra note 50 at 454 Ibid



of Iraqrsquo55 Moreover on 24 December 2015 the League of Arab States adopted aresolution expressing its lsquocondemnation of the Turkish Government for its forcesrsquoincursion into Iraqi territoryrsquo which was called lsquoa violation of Iraqi sovereigntyand a threat to Arab securityrsquo The League demanded lsquothat the Turkish Governmentimmediately and unconditionally withdraws its forces from Iraqi territoryrsquo56

Other states also expressed disapproval of the Turkish actions on various levelsRussia for example talked about an lsquounlawful incursionrsquo57 while the US noted thatlsquothe recent deployment of Turkish forces into northern Iraq had occurred without theprior consent of the Iraqi governmentrsquo that lsquoany foreign forces can only be present inIraq with the coordination and permission of the Iraqi governmentrsquo and expressedtheir lsquocommitment to Iraqi sovereignty and territorial integrity and called uponTurkey to do the same by withdrawing any military forces from Iraqi territory thathave not been authorized by the Iraqi governmentrsquo58 All these reactions59 seem toindicate that the argument of lsquocounter-terrorismrsquo has not been accepted as providingan autonomous legal basis for military action in Iraq The consent of the governmentof Iraq is considered as essential for the legality of such counter-terrorism operations

23 Intervention against terrorism or intervention in a civil warWhile not disputing the legality of intervention on the basis of consent Akandeand Vermeer argued that the airstrikes against ISIL in Iraq put in doubt the validityof the old rule of prohibition of military assistance to governments in civil wars60

The two scholars agreed that the purpose-based approach of intervention could alsoexplain the situation but what is decisive for them is that some states in their legaljustifications for the airstrikes in Iraq seemed to take the position that interventionon the basis of consent of the legitimate government is always valid including inclassic situations of civil war They quote for example the summary of the legalposition of the United Kingdom published on 25 September 2014 according towhich

International law is clear that the use of force in international relations is prohibitedsubject to limited exceptions However international law is equally clear that thisprohibition does not apply to the use of military force by one State on the territory of

55 Ibid at 256 Resolution No 7987 adopted at the Ministerial Meeting of the Council of the League of Arab States held

on 24 December 2015 lsquoUnified Arab position on the violation by Turkish forces of the sovereignty of Iraqrsquoannexed in UN Doc S201616 Letter dated 7 January 2016 from the Permanent Representative of Egypt to theUnited Nations addressed to the President of the Security Council

57 lsquoRussia calls Turkish troop deployment in Iraq unlawful incursionrsquo Reuters 12 December 2015 available atwwwreuterscomarticleus-mideast-crisis-iraq-russia-idUSKBN0TV0JH20151212

58 lsquoReadout of Vice President Bidenrsquos Call With Iraqrsquos Prime Minister Haider Al-Abadirsquo TheWhite House 16 December 2015 available at wwwwhitehousegovthe-press-office20151216readout-vice-president-bidens-call-iraqs-prime-minister-haider-al-abadi See also lsquoObama urges Turkeyrsquos Er-dogan to withdraw troops from Iraq White Housersquo Reuters 18 December 2015 available atcareuterscomarticletopNewsidCAKBN0U12JK20151218

59 Despite all these reactions Turkey has not yet withdrawn its troops at the time of completion of thisarticle This led Iraq to file new protests and to threaten Turkey with military action in self-defenceSee lsquoIraq says Turkey not honoring pledge to remove troopsrsquo Aljazeera 31 December 2015 available atwwwaljazeeracomnews201512iraq-turkey-honouring-pledge-remove-troops-151231052525306html

60 Akande and Vermeer supra note 23



another if the territorial State so requests or consents It is clear in this case that Iraqhas consented to the use of military force to defend itself against ISIL in Iraq61

According to the two scholars lsquoit is notable that this summary contained no referenceto any prohibition on military assistance to a government in a civil warrsquo62 This leadsthem to the conclusion that the specific legal justifications advanced by the UnitedKingdom and other states in relation to the strikes in Iraq lsquofocused in broad andunqualified terms on the legality of the use of force with the consent of the territorialStatersquos governmentrsquo and thus challenge the alleged prohibition on military assistanceto governments in civil wars

This conclusion is nonetheless based on an over-formalistic and incomplete read-ing of the declarations made by intervening governments in Iraq Indeed a carefulreading of all relevant documents (letters to the UN Security Council and otherofficial declarations) clearly shows that the decisive element for all states is that theintervention in Iraq is legal not only because there is valid consent by the legitimategovernment but also because the purpose of the intervention is to fight ISIL andterrorism63

The letters of invitation that Iraq sent to intervening states and the UN SecurityCouncil clearly focused on the common purpose of fighting terrorism In a letter of25 June 2014 for example the ambassador of Iraq emphasized that there were fourreasons that cumulatively justified external intervention first the new governmentof Iraq was the legitimate government which was designated after election underthe assistance of the UN second ISIL was an entity included in the list of terroristorganizations third Iraq was a victim of terrorist attacks by ISIL and faced a seriousthreat from international terrorist organizations and fourth Iraq requested theassistance of the international community64 At no time did Iraq request foreignstates to intervene in a civil war Its invitation was to help the government forcesfight ISIL

It is precisely in response to this request that the US and other states agreed tointervene emphasizing that what justifies the intervention is not just consent butalso the objective of the airstrikes which is to fight a terrorist group ISIL This isalso very clear in all relevant discussions in the UN Security Council no state everconsidered that it intervened lsquoin a civil warrsquo in Iraq On the contrary they all tookthe position that what justified intervention was the fight against terrorism and avalid consent Indeed the lsquofight against terrorismrsquo and the need to conduct counter-terrorism operations is also the main argument used by these states in order to justifytheir intervention in Syria combined with the argument of lsquoinvitationrsquo (for Russiaand Iran) or with arguments of individual or collective lsquoself-defencersquo and sometimes

61 Ibid62 Ibid63 These documents have been analyzed in detail by R Van Steenberghe lsquoThe Alleged Prohibition on

Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq A Responseto Dapo Akande and Zachary Vermeerrsquo EJIL Talk 12 February 2015 available at wwwejiltalkorgthe-alleged-prohibition-on-intervening-in-civil-wars-is-still-alive-after-the-airstrikes-against-islamic-state-in-iraq-a-response-to-dapo-akande-and-zachary-vermeer

64 UN Doc S2014440 supra note 33



with the lsquounwilling or unable theoryrsquo for the states of the US-led coalition65 It is thussimply impossible to eliminate the lsquofight against terrorismrsquo from the legal equationof the interventions in Iraq Libya and Syria

As a conclusion it seems that the lsquoIraqi precedentrsquo far from challenging thepurpose-based approach of intervention by invitation looks like the lsquoMali precedentrsquoSimilarly to the case of Mali what also legitimizes military intervention in Iraq isnot only the validity of the invitation issued by the internationally recognizedgovernment but also the fact that its objective is to fight groups which are clearlyand beyond doubt lsquoterrorist groupsrsquo according to international law

3 LIBYA INTERVENTION BY INVITATION AS A POLITICAL TOOLThe growing threat from ISILrsquos presence in Libya raises the issue of the legal basis forpast and potential future military interventions in this country In February 2015Egypt used the theory of consensual military intervention as the legal basis for itsstrikes against ISIL in Libya (Section 31) In November 2015 the US carried out anairstrike in Libya against a senior leader of ISIL but without providing any legalbasis for it (Section 32) The increasing presence of ISIL in Libya and the fear that theterrorist organization might take control of Libyarsquos important oil infrastructure anduse Libya as a basis to spread its influence to other North African and Sub-Saharancountries have caused growing concerns to the international community in the pastfew months and have led to several calls (including by the Libyan internationallyrecognized government) to expand military intervention against ISIL from Iraq andSyria to Libya It is nonetheless interesting to note that the international communityrequires as a condition for military intervention the formation of a unified Libyangovernment Thus far from using the pretext of lsquoconsentrsquo in order to intervene inthe Libyan civil war the international community uses the pledge of lsquointerventionby invitationrsquo as a kind of diplomatic tool in order to put an end to the civil war inLibya and to obtain the formation of a national unity government (Section 33)

31 Consent as the legal basis for the Egyptian strikes against the ISILOn 16 February 2015 six Egyptian F16 fighter jets in coordination with the Libyanair force66 launched airstrikes against ISIL in Libya after the beheading by ISIL of21 Coptic Christians from Egypt The strikes killed 81 ISIL fighters The declarationsof both states made it clear that the legal basis of the airstrikes was valid consentby Libya combined with the fact that the objective was the common fight againstterrorism

During an urgent meeting of the UN Security Council Libya declared that lsquo[t]heLibyan Government has called on brotherly Egypt to support the Libyan army inconfronting terrorismrsquo67 In a similar way Egypt declared that

65 See Section 4 infra66 See lsquoAirstrikes hit 3 coastal Libyan cities Egypt and Libya coordinated attacks says

Libyan Air Force commanderrsquo Daily News Egypt 16 February 2015 available atwwwdailynewsegyptcom20150216airstrikes-hit-3-coastal-libyan-cities

67 UN Doc SPV7387 18 February 2015 The Situation in Libya at 5



States wishing to assist the legitimate Libyan Government in confronting terrorism andimposing security should be allowed to do so in the light of the severe difficulties thelegitimate Government faces in that regard with the condition that such assistancebe provided in coordination with the Libyan Government and with its approval Egypthas decided to respond to the requests and needs of the government of Libya and hasprovided military assistance68

Three observations can be made in relation to this event First it must be emphasizedthat since 2014 Libya has been torn apart by a civil war between several rival factionsthe lsquoTobruk governmentrsquo constituted by the Council of Deputies elected in 2014 andinternationally recognized as the government of Libya which controls most of theterritory the lsquonew General National Congressrsquo backed by the Muslim Brotherhoodand the Islamist coalition lsquoLibya Dawnrsquo which seized control of the capital Tripoliand controls a big portion of North-West Libya and various jihadists and tribalelements controlling smaller parts of the country Despite the existence of the civilwar in Libya Egypt considered that the airstrikes were perfectly legal because theinvitation emanated from the internationally recognized Libyan government and itsobjective was just to target a terrorist organization This confirms the purpose-basedapproach of intervention by invitation

Second while the UN Security Council took no action after this February 2015meeting no member criticized in anyway the airstrikes or the legal argument of con-sensual military intervention against terrorist groups The Arab League expressedits lsquocomplete understandingrsquo over the Egyptian action69 while the US declared thatit lsquocertainly respects the right of countries to make their own decisions about theirown self-defencersquo70 During the debates within the Arab League one state Qatarexpressed reservations over the attack saying that it could lsquogive an advantage toone side in Libyarsquos conflictrsquo This led to a swift condemnation from Egypt whichaccused Qatar of supporting terrorism and to a diplomatic incident between thetwo countries after Qatarrsquos decision to recall its ambassador from Egypt in protestat this Egyptian accusation71 This incident should nonetheless be explained by thefact that Egypt and Qatar back different sides in the ongoing Libyan civil war ratherthan as a challenge by Qatar of the legality of military intervention by invitationagainst terrorists

Finally it is interesting to note that while Egypt considered that lsquointervention byinvitationrsquo provided a clear and sufficient legal basis for these airstrikes it also calledfor a UN Security Council Chapter VII resolution in order to create an internationalcoalition to intervene in Libya lsquofollowing the agreement of the Libyan people andgovernment and that they call us to actrsquo72 Nonetheless Western powers have been

68 Ibid at 7 (emphasis added)69 lsquoArab League ldquounderstandsrdquo Egypt airstrikes in Libyarsquo Turkish Weekly 19 February 2015 available at

wwwturkishweeklynet20150219newsarab-league-understands-egypt-airstrikes-in-libya70 lsquoUS ldquoRespects Egyptrsquos Right To Self-Defenserdquo After Libya Airstrikesrsquo Egyptian Streets 18 February 2015

available at egyptianstreetscom20150218u-s-respects-egypts-right-to-self-defence-after-libya-airstrikes71 lsquoEgypt Qatar trade barbs in dispute over Libya strikesrsquo Reuters 19 February 2015 available at

wwwreuterscomarticleus-mideast-crisis-egypt-qatar-idUSKBN0LN0752015021972 lsquoEgyptrsquos Sissi calls for Libya coalition under UN mandatersquo Reuters 17 February 2015 available at

wwwreuterscomarticleus-mideast-crisis-libya-egypt-idUSKBN0LL0GA20150217



reluctant to follow this path considering that a prerequisite for such a militaryintervention is the establishment of a national unity government in Libya73

32 No legal justification advanced by the USOn 13 November 2015 a US airstrike on a compound in the city of Derna killedISILrsquos senior leader in Libya an Iraqi known as Abu Nabil The US did not provideany legal justification for this The US Department of Defense only mentioned thatthis lsquodemonstrates [that] we will go after ISIL leaders wherever they operatersquo74

More recently it has been reported that the US was extremely worried about theISILrsquos growing presence in Libya and that it was seriously considering opening amilitary front against ISIL in Libya preparing for possible airstrikes andor com-mando raids75 Once again nonetheless nothing has been said about the potentiallegal basis for such future intervention76

33 The political use of intervention on requestISIL was able to grow rapidly in Libya and to seize control of Sirte and several citiesand districts especially in the Cyrenaica region It is in this context that severalvoices called for the US and its allies to expand military action against ISIL in Libyawhile the officially recognized government of Libya launched several calls to lsquofellowArab Statesrsquo to carry out air strikes against ISIL77

However the international community has so far resisted the idea of militaryintervention without a previous political solution to the Libyan civil war Thepossibility of military intervention and help on request is used as a major politicaltool in order to accelerate the political transition in Libya and to obtain the formationof a national unity government capable of issuing such a request

This was for example the position of the UN Security Council in its Resolu-tion 2259 of 23 December 2015 on Libya which lsquowelcome[d] the signature on 17th

December 2015 of the Libyan Political Agreement of Skhirat Morocco to form aGovernment of National Accordrsquo and lsquothe formation of the Presidency Councilrsquo andlsquocalle[d] upon Member States to respond urgently to requests from it for assistancersquo78

The UN Security Council lsquoendorse[d] the Rome Communique of 13 December 2015to support the Government of National Accord as the sole legitimate government ofLibyarsquo79 and then emphasized in relation to the fight against ISIL that it

Urges Member States to swiftly assist the Government of National Accord in respondingto threats to Libyan security and to actively support the new government in defeating ISIL

73 lsquoWest Rebuffs Egypt Proposals for Military Intervention in Libyarsquo The Wall Street Journal 19 February 201574 lsquoStatement from Pentagon Press Secretary Peter Cook on US strike in Libyarsquo US Depart-

ment of Defense 14 February 2015 available at wwwdefensegovNewsNews-ReleasesNews-Release-ViewArticle628954statement-from-pentagon-press-secretary-peter-cook-on-us-strike-in-libya

75 lsquoObama Is Pressed to Open Military Front Against ISIS in Libyarsquo The New York Times 4 February 201676 The US chairman of the Joint Chiefs of Staff just said that President Obama lsquohas made clear that we have the

authority to use military forcersquo in lsquoUS and Allies Weigh Military Action Against ISISrsquo The New York Times22 January 2016

77 lsquoLibya urges Arab allies to launch air strikes against Isisrsquo The Guardian 21 August 201578 UN Doc SRES2259 23 December 2015 paras 1 279 Ibid para 3 (emphasis added)



groups that have pledged allegiance to ISIL Ansar Al Sharia and all other individualsgroups undertakings and entities associated with Al-Qaida operating in Libya upon itsrequest80

A very similar position was taken in early February 2016 by NATO and 23 statesparticipating in an international meeting in Rome about Libya and the fight againstISIL Despite the delays in the implementation of the Libyan Political Agreement andthe urgent calls for military action against ISIL in Libya NATO declared that it willnot intervene in Libya without the formation of a national unity government anda request by this government to NATO to intervene81 This was also the position ofseveral European countries The EU foreign policy chief F Mogherini was reportedas lsquoruling out that the EU might launch military operations without agreementfrom the national unity governmentrsquo and said that such an intervention could onlytake place lsquoin the ways that the Libyan government wants once it is operativersquo82

Even the US which seemed to be the most pressed to intervene against ISIL inLibya considered in early February 2016 that lsquoenormous hurdles stand in the wayof increased American military involvementrsquo and lsquothe largest is the formation ofa unified Libyan government strong enough to call for and accommodate foreignmilitary assistancersquo83

It is of course too early to anticipate what will happen with the fight against ISILin Libya especially if the terrorist threat grows stronger andor the political processstalls It is interesting nonetheless to highlight that far from using lsquoconsentrsquo of theinternationally recognized government of Libya as a pretext to help this governmentwin the civil war states use the promise of military invitation against ISIL to obtainthe creation of a national unity government willing and capable of issuing aninvitation for external intervention There is thus nothing in the case-study ofLibya calling into question the prohibition of intervention by invitation in civilwars and the purpose-based approach

4 INTERVENTION IN SYRIA THE DIRE STRAITS OF CONSENT

There are as of January 2016 12 states openly recognizing that they take military ac-tion of different kinds (mainly airstrikes but also in some cases ground operations)in Syria In the following subsections I will try to identify if and to what extentconsent could be used as a legal basis for all these military interventions This isclearly the legal argument used by Russia and Iran in order to justify their importantmilitary operations in Syria The theory of consent is nonetheless extremely diffi-cult if not impossible to use regarding the operations of the US-led coalition even

80 Ibid para 12 (emphasis added)81 See the declarations of NATO Secretary General Jens Stoltenberg quoted in lsquoLrsquoOTAN nrsquointerviendra pas sans

accord politique national en Libyersquo Le Monde 2 February 201682 lsquoLibya needs govrsquot before anti-ISIS intervention Mogherinirsquo AnsaMed 5 February 2016 avail-

able at wwwansamedinfoansamedennewssectionspolitics20160205libya-needs-govt-before-anti-isis-intervention-mogherini_09e433c8-c993-4fb6-bb91-2f2678700379html

83 lsquoDespite Libya urgency hurdles to quick action against Islamic Statersquo Reuters 6 February 2016 available atinreuterscomarticleusa-libya-idINKCN0VE2PN



if we try to stretch it to its outer limits using the controversial argument of lsquopassiveconsentrsquo

41 Express consent as the legal basis for intervention by Russia and IranIt has often be reported that parallel to the US-led coalition against ISIL in Syriaanother coalition has been formed between Iraq Russia Iran and Syria not tomention some important non-state actors such as the Lebanese Hezbollah whichhas now been helping the regime of Bashar Al-Assad for years84 Both Russia andIran used consent as the legal basis for their intervention in Syria

411 Russia and Iran relied on the theory of intervention by invitationIran was the first state to intervene in response to a request for help by the Syriangovernment For a long time this country officially denied the presence of its combattroops in Syria maintaining that it provides just lsquomilitary advicersquo to Assadrsquos forcesin their fight against terrorist groups However several reports have mentionedthat Iran sent an important expeditionary mission involving Islamic RevolutionaryGuards Corps and several high ranked officials to Syria According to some expertsIran may have sent as many as 3000 troops to Syria85 Taking into consideration thissecretive attitude by Iran it is obvious why this state sent no letter of justification forthis military intervention to the UN Security Council Progressively nonethelessand due also to the increasing number of losses among the Iranian soldiers in Syria86

Iran started to acknowledge its role using as a legal justification the call for helplaunched by the Syrian government Iranian President H Rohani acknowledgedthe existence of a lsquocoalition between Iran Iraq Syria and Russiarsquo and explainedthat Iranian lsquomilitary advisersrsquo are present in Syria and Iraq on the invitation of thegovernments of these two states87

Russia on the contrary made no secret of its military intervention against ISIL inSyria from the outset and used very clearly the argument of invitation by the Syrianlsquolegitimate governmentrsquo as a legal justification The Russian military intervention inSyria started on 30 September 2015 with massive airstrikes while Russian supporttroops were deployed in some areas like the Russian naval base of Tartus or theLatakia airport In a letter sent to the UN Security Council on 15 October 2016Russia explained that

in response to a request from the President of the Syrian Arab Republic Bashar al-Assadto provide military assistance in combating the terrorist group Islamic State in Iraq andthe Levant (ISIL) and other terrorist groups operating in Syria the Russian Federation

84 See for example lsquoIraq Russia Iran and Syria coordinate against ISILrsquo Al Jazeera 27 September 2015 availableat wwwaljazeeracomnews201509iraq-russia-iran-syria-coordinate-isil-150927125919507html We couldadd other non-state actors and lsquoforeign fightersrsquo such as Shiite militia from Afghanistan and Iraq who havereportedly helped the Syrian government forces

85 See lsquoIranian casualties rise in Syria as Tehran ramps up rolersquo The Jerusalem Post 23 December 201586 See lsquoIranian media is revealing that scores of the countryrsquos fighters are dying in Syriarsquo The Washington Post

27 November 201587 See his interview in Le Monde 30 January 2016



began launching air and missile strikes against the assets of terrorist formations in theterritory of the Syrian Arab Republic on 30 September 201588

Syria welcomed the strikes presenting the Russian intervention as perfectly legaland called for other countries to lsquohonour international lawrsquo by siding with Russia andSyria and acting in cooperation with the government forces89 Since then the Syriangovernment of Bashar al-Assad never ceased to express its approval and support forthe Russian military intervention

If it is thus undisputable that Russia acted under the regime of lsquomilitary interven-tion by invitationrsquo two major legal issues arise and need to be discussed

412 The validity of the invitationThe first legal issue concerns the validity of the invitation and more preciselythe legitimacy and lsquorepresentativenessrsquo of the author of the invitation the gov-ernment of Bashar al-Assad Some scholars took the position that the regimeof Bashar al-Assad has lost its legitimacy and popular acquiescence and thusalso its standing to consent to external intervention According to M Weller forexample

A very large number of States have determined that the Assad government canno longer fully claim to represent the people of Syria Instead the oppositionis the true representative of Syria Having been disowned by such a largesegment of its population and over such a long period [the Assad government]can no longer lawfully invite foreign military force to intervene and fight on itsbehalf90

This argument nonetheless is not really convincing Without entering into anexamination of the democratic legitimacy of Bashar al-Assad (his government wasre-elected in June 2014 although many dismissed this election that took placein the midst of a terrible civil war as a farce) one could notice that there areseveral elements indicating that the international community still considers thegovernment of Bashar al-Assad as representing Syria

It is true that several states deny the legitimacy of the Syrian Government andsome among them recognized the lsquoSyrian National Coalitionrsquo (or the lsquoSyrian Op-position Coalitionrsquo) as the lsquolegitimate representative of the Syrian peoplersquo91 Butas Talmon showed an illegitimate regime may still be a government in the eyesof international law92 In a specific case-study of Syria Talmon also explained the

88 UN Doc S2015792 15 October 2015 Letter dated 15 October 2015 from the Permanent Representative of theRussian Federation to the United Nations addressed to the President of the Security Council

89 See lsquoSyriarsquos ambassador to Russia urges all countries to join Syria and Russia against terrorismrsquo SANA 1October 2015 available at sanasyenp=56454

90 lsquoRussia Says Its Airstrikes In Syria Are Perfectly Legal Are Theyrsquo The World Post 1 October 2015 available atwwwhuffingtonpostcomentryrussia-airstrikes-syria-international-law_us_560d6448e4b0dd85030b0c08

91 See Wikipedia enwikipediaorgwikiInternational_recognition_of_the_Syrian_National_Council92 S Talmon lsquoThe Difference between Rhetoric and Reality Why an Illegitimate Regime May

Still be a Government in the Eyes of International Lawrsquo EJIL Talk 3 March 2011 availableat wwwejiltalkorgthe-difference-between-rhetoric-and-reality-why-an-illegitimate-regime-may-still-be-a-government-in-the-eyes-of-international-lawmore-3101 See also D Akande lsquoWhich Entity is theGovernment of Libya and Why does it Matterrsquo EJIL Talk 16 June 2011 available atwwwejiltalkorgwhich-entity-is-the-government-of-libya-and-why-does-it-matter



difference between the lsquolegalrsquo and lsquopoliticalrsquo act of recognition and concluded thatthe recognition of the lsquoSyrian Opposition Coalitionrsquo as lsquothe legitimate representativeof the Syrian peoplersquo was lsquoa purely political actrsquo93 We could thus consider that thisexpression of political support for the lsquoSyrian National Coalitionrsquo by some statesdid not challenge the view of the international community that the governmentof Bashar al-Assad regardless of its loss of legitimacy was still representing SyriaMoreover the lack of unity and cohesion of the opposition forces and the fluctuantcharacter of the lsquoSyrian National Coalitionrsquo created a lot of reservations for manystates including those hostile to the regime of Bashar al-Assad and can also explainwhy the overwhelming majority of states preferred to maintain the view that theregime in Damascus is still the Syrian government in the eyes of international lawAs for effectiveness the Bashar al-Assad government was able to exercise effectivecontrol over some important parts of Syria including the capital while lsquonone ofthe other opposition groups including ISIL can be considered as a challenging au-thority as they are not exercising sufficient effective control over Syriarsquo94 The lsquoMaliprecedentrsquo showed that the lack of effectiveness of the Malian authorities over morethan half of the country or indeed the political challenges facing these authoritiesnever questioned the validity of the invitation extended to France in January 2013to intervene against terrorists threatening to capture the capital Bamako95

Turning to the practice of international organizations we can notice that someorganizations such as the Arab League in November 201196 or the Organization ofIslamic Cooperation in August 201297 suspended the Syriarsquos membership over itsfailure to end government crackdown on protests However Syria is still present inother organizations and their delegates accredited by the Damascus governmentstill represent this country The most notable example is the UN where the PermanentMission of the Syrian Arab Republic is particularly active sending dozens of lettersto the Secretary-General and the President of the UN Security Council in order todefend the regimersquos positions The government in Damascus was also consideredas capable to legally bind Syria by ratifying certain international treaties mostnotably by acceding to the Chemical Weapons Convention on 14 October 2013after the events (use of chemical weapons) in August 2013 and the adoption of theUN Security Council Resolution 2118 on 27 September 201398

Last but not least no state challenged to my knowledge the validity of theinvitation to intervene While several Western and Arab states criticized Russiafor also attacking the lsquomoderate Syrian oppositionrsquo no state called into question

93 S Talmon lsquoRecognition of Opposition Groups as the Legitimate Representative of a Peoplersquo (2013) 12 ChineseJournal of International Law 219

94 Visser supra note 2295 Bannelier and Christakis supra note 6 at 86596 lsquoSyria suspended from Arab Leaguersquo The Guardian 12 November 201197 lsquoSymbolic decision OIC poised to suspend Syriarsquo Tribune 16 August 2012 available at

tribunecompkstory422772symbolic-decision-oic-poised-to-suspend-syria98 lsquoSyriarsquos Accession to the Chemical Weapons Convention Enters into Forcersquo Organ-

isation for the Prohibition of Chemical Weapons 14 October 2013 available atwwwopcworgnewsarticlesyrias-accession-to-the-chemical-weapons-convention-enters-into-force



the legality of the Russian airstrikes against ISIL on the basis of intervention byinvitation

413 Russian intervention A challenge to the purpose-based approachThe second important legal issue concerns the purpose of the Russian interventionand the question of the legality of intervention by invitation of a government ina civil war In the case of the Russian intervention in Syria as in the case of theUS-led intervention in Iraq some scholars took the position that this is a precedentin favour of the idea that there is no prohibition of intervention by invitation in acivil war99

However both the criticisms addressed to Russia for the modalities of its interven-tion and Russiarsquos responses to these criticisms seem to lead to a different conclusionThey seem to indicate that this is a case confirming the lsquoMali precedentrsquo and theidea that the legality of intervention does not result from a presumed carte blanche tointervene in a civil war but is directly linked to its specific purposes and especiallythe lsquoexceptionrsquo of the fight against terrorism

Let us focus first on the reactions to Russian airstrikes in Syria Several Westernand Arab states and some international organizations heavily criticized Russiafor its military intervention in Syria But in no case did an international actorcriticize Russia for bombing ISIL or other terrorist groups in Syria The criticismonly concerned Russian airstrikes not directed against terrorist organizations butagainst lsquomoderate rebelsrsquo

The Council of the European Union stated for example on 12 October 2015

The recent Russian military attacks that go beyond Daersquosh and other UN-designated terror-ist groups as well as on the moderate opposition are of deep concern and must ceaseimmediately This military escalation risks prolonging the conflict undermininga political process aggravating the humanitarian situation and increasing radicaliza-tion100

At the UN level some Arab and Western states were successful in adopting on2 November 2015 a non-binding resolution of the UN General Assemblyrsquos ThirdCommittee which

[s]trongly condemns all attacks against the Syrian moderate opposition and calls for theirimmediate cessation given that such attacks benefit so-called ISIL (Daesh) and otherterrorist groups such as Al-Nusrah Front and contribute to a further deterioration ofthe humanitarian situation101

99 Visser supra note 22100 lsquoCouncil conclusions on Syriarsquo Council of the European Union 12 October 2015 available at

wwwconsiliumeuropaeuenpresspress-releases20151012-fac-conclusions-syria (emphasis added)101 Situation of human rights in the Syrian Arab Republic UN Doc AC370L47 2 November 2015 UN

Third Committee para 15 Adopted by 115 votes in favour 15 against 51 abstentions This resolution alsolsquostrongly condemns the intervention in the Syrian Arab Republic of all foreign terrorist fighters and thoseforeign organizations and foreign forces fighting on behalf of the Syrian regime particularly the Al-QudsBrigades the Islamic Revolutionary Guard Corps and militia groups such as Hezbollah Asarsquoib Ahl al-Haqand Liwarsquo Abu al-Fadl al-Abbas and expresses deep concern that their involvement further exacerbates thedeteriorating situation in the Syrian Arab Republic rsquo (para 14)



More recently the British Foreign Secretary Phillip Hammond strongly criticizedRussia for exceeding its proclaimed mission in Syria lsquoThe Russians say they wantto destroy Daesh but they are not bombing Daesh they are bombing the moderateoppositionrsquo said Hammond adding that lsquoless than 30 per cent of Russian strikesare against Daesh targetsrsquo and that this lsquoundermines international efforts to end theSyrian civil war by bombing opponents of Islamic State in an attempt to bolsterBashar al-Assadrsquo102

These statements did not seem to challenge the legality as such of the Russianstrikes against the moderate opposition103 However the language used clearlydemonstrates that the international community is not ready to give a carte blancheto foreign states to intervene in civil wars under the cover of invitation by thegovernment While nobody challenged the legality of Russian airstrikes against ISILand other terrorist groups the perceived effort of Russia to lsquotake sidesrsquo with the Syriangovernment against the rebels met strong reactions and condemnations This seemsto confirm rather than to challenge the purpose-based approach of the legality ofmilitary intervention by invitation

The analysis of the Russian reactions to these criticisms also seems to confirmthis approach Despite pretty clear indications that Russia was indeed helping sub-stantially the Syrian government forces in their fight not only against terroristgroups but also against Syrian rebels Russia has maintained until now that it onlyintervenes against terrorists Russian President Vladimir Putin insisted on severaloccasions that lsquo[t]he countryrsquos only goal is to combat the international terroristsof ISILrsquoand other terrorist groups such as the al-Nusrah Front104 Russiarsquos ForeignMinister Sergey Lavrov argued that the objective of Russiarsquos intervention is exactlythe same as that of the US-led intervention in Syria ndash to fight terrorism105

From an opinio juris point of view this is very important In international lawpractice there is sometimes a distortion between what states say and what theyreally do106 The declarations of Russia in relation to the objectives of its interventionin Syria seem to confirm the idea that whatever the reality on the ground and thehidden intentions and actions are states do not wish to assume a right to intervene

102 lsquoPutin is fanning Syrian civil war Britainrsquos Hammond saysrsquo Reuters 1 February 2016 available atwwwreuterscomarticleus-mideast-crisis-britain-idUSKCN0VA3RQ

103 The moderate opposition did so nonetheless arguing in a letter addressed through the United Kingdom tothe UN Security Council that lsquoRussiarsquos intervention in Syria violates international lawrsquo and that lsquoISIS willnot be defeated as long as Syrians are being bombed into oblivionrsquo See UN Doc SS015941 11 December2015 Letter dated 8 December 2015 from the Permanent Representative of the United Kingdom of Great Britain andNorthern Ireland to the United Nations addressed to the President of the Security Council

104 lsquoSyria crisis Vladimir Putin insists Russia is only bombing Isisrsquo Independent 12 October 2015105 See lsquoRussia rejects criticism of air strikes in Syriarsquo Aljazeera 1 October 2015 available

at wwwaljazeeracomnews201510russia-rejects-criticism-air-strikes-syria-151001173827826html lsquoWest-ern criticism of Russian operations in Syria is groundless ndash Moscowrsquo Russia Today 2 February 2016 availableat wwwrtcomnews331028-uk-hammond-syria-lavrov

106 For example the fact that several states practice torture while they clearly maintain the legal position thattorture is prohibited does not put in any way in danger the prohibition of torture in general internationallaw As the International Court of Justice famously said in the Nicaragua Judgment of 27 June 1986 lsquoIf aState acts in a way prima facie incompatible with a recognized rule but defends its conduct by appealing toexceptions or justifications contained within the rule itself then whether or not the Statersquos conduct is in factjustifiable on that basis the significance of that attitude is to confirm rather than to weaken the rulersquo (para186)



in a purely internal conflict From the beginning of the justifications provided forthe operations (the Russian letter to the UN Security Council) until today (earlyFebruary 2016) Russia has never claimed a general right to intervene in the civil warin Syria to lsquosaversquo the Syrian regime which called for help Instead it provides the legaljustification of intervening for a specific purpose ndash to help the Syrian government fightterrorist groups107

This immediately raises an important problem as mentioned in the introductionconcerning the definition of terrorism and the organ capable of deciding whichare the lsquoterrorist groupsrsquo in Syria The invocation of a lsquolegitimate purposersquo to justifyintervention by invitation could become an empty shell or a mere game of semanticsif it is used just as a cover to interfere in a civil war The efforts of Russia to convincethat the purpose of its invitation is just to lsquofight terrorismrsquo could indeed becomemeaningless if Russia shares the very broad approach of the Syrian governmentwhich seems to consider that almost all groups opposing government forces shouldbe considered as lsquoterrorist groupsrsquo108 An examination of Russiarsquos arguments doesnot seem to confirm nonetheless that this is the case

Russia of course expressed doubts about the exact number and identity of thelsquoterroristrsquo groups in Syria Russia mentioned several times that lsquoworld powers mustidentify which of the dozens of rebel groups fighting in Syria areldquoterroristsrdquobeforeresuming talks on establishing a limited cease-fire and moving toward a solution tothe conflictrsquo109 But these doubts regarding the exact number and identity of terroristgroups in Syria are shared to some extent by the international community The UNSecurity Council clearly stated in several occasions that ISIL the Al-Nusrah Frontlsquoand all other individuals groups undertakings and entities associated with Al-Qaidarsquo are clearly terrorist organizations110 The UN Security Council has also clearlyand constantly affirmed that other groups could be added to the list lsquoas may furtherbe agreed by the International Syria Support Group (ISSG) and endorsed by theUN Security Council pursuant to the Statement of the International Syria SupportGroup (ISSG) of 14 November 2015rsquo111 The embarrassment of the internationalcommunity concerning the exact identification of terrorists in Syria is also evidentin the decision of the participants in the Vienna talks on Syria to ask Jordan tocoordinate efforts to compile a common list of terrorist groups in Syria112

Despite these uncertainties Russia stated that lsquoRussiarsquos targets were those con-sidered terrorists by the United Nations and by the Russian legal system including

107 Corten noted that to the extent that the Syrian rebels received substantial aid from several foreign statesRussia could have also relied on another acceptable specific purpose for this invited intervention counter-intervention But as Van Steenberghe observed this argument was not used officially in the Russian letterto the UN Security Council to justify the intervention See their comments in Visser supra note 22

108 Supra note 21109 lsquoSyrian ldquoTerroristsrdquo Must Be Identified Before Talks Russia Saysrsquo Bloomberg 4 November 2015 available at

wwwbloombergcomnewsarticles2015-11-04syrian-terrorists-must-be-identified-before-talks-russia-says110 See for instance UN Doc SRES 2249 20 November 2015 para 5 UN Doc SRES 2254 18 December 2015

para 8 UN Doc SRES 2258 22 December 2015 preamble111 Ibid112 lsquoRussia says Jordan to coordinate Syria list of terrorist groupsrsquo Reuters 15 November 2015 available at

afreuterscomarticleworldNewsidAFKCN0T40GM20151115 lsquoSelection of Jordan to compile list of Syriaterror groups a sign of intrsquol trustrsquo The Jordan Times 16 November 2015



Islamic State and the al Qaeda-linked Nusra Frontrsquo and that the Free Syrian Armyrebels are not considered by Russia as a terrorist group113 It has maintained thatRussiarsquos and USArsquos lsquoterroristrsquo lists lsquolargely coincidersquo114 Russia also expressed severaltimes its lsquoreadiness to cooperate with the so-called moderate Syrian oppositionrsquo115

and claimed having lsquoworked together with the Free Syrian Armyrsquo and the SyrianKurds in the fight against terrorism116 Whatever the veracity of these statements isit seems that Russia does not officially consider all the Syrian rebels as lsquoterroristsrsquo anddoes not claim a right to target them either on the basis of the theory of interventionby invitation

As a conclusion whatever the reality is on the ground the legal argumentsused in relation to the Russian intervention in Syria give no support to theidea of absence of prohibition of consensual intervention in a civil war andseem to confirm on the contrary the purpose-based approach of intervention byinvitation

42 The US-led intervention and the murky waters of passive consentThe strikes of the US-led coalition against ISIL in Syria started on 22 September2014 a few days after the speech of the US President Barack Obama indicating theintent of the US to lsquodegrade and ultimately destroy ISIL through a comprehensiveand sustained counterterrorism strategyrsquo and to lsquohunt down terrorists who threaten[the US] wherever they arersquo117 According to the official US webpage of OperationInherent Resolve the following ten states have participated in US-led airstrikes inSyria until early February 2016 the US Australia Bahrain Canada France JordanSaudi Arabia Turkey UAE and the United Kingdom118

Contrary to the Russian and Iranian intervention it is impossible to use thetheory of military intervention by invitation for the US-led intervention In orderto use consent as a potential legal basis for this intervention one could thus onlyrely on a theory of lsquopassive consentrsquo which is nonetheless not only controversial ininternational law but also extremely difficult if not impossible to use in the case ofSyria once we examine all the relevant facts

421 The impossibility to use the theory of military intervention by invitationThree simple facts clearly establish that it is impossible to argue that the USA-ledcoalition intervened in Syria on the basis of an invitation by the Syrian government

113 lsquoRussia says US-backed Free Syrian Army not a terrorist grouprsquo Reuters 1 October 2015 available atwwwreuterscomarticleus-mideast-crisis-lavrov-fsa-idUSKCN0RV51620151001

114 lsquoRussia US lsquoterroristrsquo lists lsquolargely coincidersquorsquo Al Arabia 13 November 2015 available at englishalarabiyanetenNewsmiddle-east20151113Putin-says-Russia-has-struck-Syria-targets-identified-by-Free-Syrian-Armyhtml

115 lsquoAmbassador Moscow cooperating with some Syrian opposition on all lsquofrontsrsquorsquo Rus-sia Beyond the Headlines 8 February 2016 available at rbthcomnews20160208ambassador-moscow-cooperating-with-some-syrian-opposition-on-all-fronts_565865

116 lsquoPutin says Russia has struck targets identified by Free Syrian Armyrsquo Reuters 13 November 2015 available atwwwreuterscomarticleus-mideast-crisis-russia-putin-idUSKCN0T21ID20151113

117 lsquoStatement by the President on ISILrsquo The White House 10 September 2014 available atwwwwhitehousegovthe-press-office20140910statement-president-isil-1

118 These states have conducted until 3 February 2016 a total of 3350 airstrikes in Syria See supra note 35



Firstly it is clear that Syria never requested such an intervention which is in sharpcontrast with the invitations extended to both Iran and Russia In a letter sent to theUN Security Council on 17 September 2015 Syria emphasized that it lsquohas not madeany request to that effectrsquo119

Secondly consent has clearly never been asked from Syria by the states parti-cipating in the US-led coalition All of them are hostile to the official governmentof Bashar al-Assad considering it illegitimate and asking for its departure The USState Department clearly indicated that the US-led coalition was lsquonot looking for theapproval of the Syrian regimersquo120 and constantly ruled out any cooperation withSyrian government forces121

Thirdly on the legal field the issue of invitation or consent was never mentionedin the legal justifications provided by the intervening states The US letter of Septem-ber 2014 and all the other letters of intervening states sent to the UN Security Councilonly advance as a legal basis lsquoself-defencersquo either individual andor collective com-bined with the fight against terrorism and sometimes the lsquounable or unwillingtheoryrsquo Far from lsquoconsentingrsquo Syria is presented in some of these letters as lsquoneithercapable nor willing to prevent these threats emanating from its territoryrsquo122

It is thus clear that in the case of the US-led coalitionrsquos military activities inSyria nobody issued an invitation and nobody requested or accepted one Could weconsider nonetheless that the identity of the common enemy and some mutualinterests could at least leave open the possibility of some kind of concealed cooper-ation or at least passive consent and acquiescence by the Syrian government to thestrikes against ISIL Before looking at the facts let us examine if international lawcould accept a lsquopassive consentrsquo theory of intervention

422 Does international law accept the theory of lsquopassive consentrsquoIt is well known that lsquoone of the bedrocks of international law is the ldquoactionndashreaction paradigmrdquo The conduct of a State towards another State and the reactionof the latter are essential to the definition of their relationsrsquo123 Silence inactiontolerance absence of protest passivity and acquiescence can play a very importantrole in international law and the maxim qui tacit consentire videtur si loqui debuissetac potuisset is of fundamental importance Could this maxim be combined with

119 UN Doc S2015719 21 September 2015 Identical letters dated 17 September 2015 from the Permanent Repres-entative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of theSecurity Council

120 lsquoWhite House wonrsquot commit to asking Congress for Syria strikersquo The Hill 25 August 2014 available atthehillcompolicydefense215905-white-house-wont-commit-to-asking-congress-for-syria-strike

121 lsquoUS rules out coordinating with Assad on airstrikes against Islamists in Syriarsquo Washington Post 26 August2014 available at wwwwashingtonpostcomworldnational-securityus-rules-out-coordinating-with-assad-on-airstrikes-against-islamists-in-syria20140826cda02e0e-2d2e-11e4-9b98-848790384093_storyhtml

122 See for example UN Doc S2014695 23 September 2014 Letter dated 23 September 2014 from the PermanentRepresentative of the United States of America to the United Nations addressed to the Secretary-General or UN DocS2015563 24 July 2015 Letter dated 24 July 2015 from the Charge drsquoaffaires ai of the Permanent Mission of Turkeyto the United Nations addressed to the President of the Security Council See O Corten lsquoThe ldquoUnwilling or UnablerdquoTest Has it Been and Could it be Acceptedrsquo this Symposium doi101017S0922156516000315

123 NS Marques Antunes lsquoAcquiescencersquo Max Planck Encyclopedia of Public International Law



the maxim volenti non fit injuria and lead to the conclusion that passive consent ispossible

Whatever the answer in other fields of international law is considering thespecific and so important issue of military intervention the risks of abuse areevident the blind application of the principle qui tacit consentire could indeed lead tochaos States could undertake military interventions on foreign territory invokingimplied consent or hoping for a retrospective one Weak states would often haveto endure such military interventions on their territory not daring to criticize theactions of powerful states or lsquoalliesrsquo with whom they find themselves in a situationof dependence (concerning for example security arrangements or expectations offinancial aid) An eventual ulterior protest could come lsquotoo latersquo It could thus bewiser for international law to avoid the risks of abuse by requesting not only priorconsent (this is admitted by all) but also written or clearly expressed consent formilitary intervention

During the debates for the adoption of the UN General Assembly Resolution3314 on the definition of aggression two states proposed to introduce to the list ofacts that lsquoqualify as an act of aggressionrsquo any armed action conducted without thewritten or express consent of the state concerned124 This proposal was not acceptedand Resolution 3314 does not set any conditions as to the form of the agreementAccording to this resolution nonetheless an act of aggression may consist of the

use of armed forces of one State which are within the territory of another State with theagreement of the receiving State in contravention of the conditions provided for in theagreement or any extension of their presence in such territory beyond the terminationof the agreement125

Without requiring an lsquoexpressrsquo agreement of the receiving state this paragraphseems to leave little room for military activities or even presence of foreign troops inthe territory of the receiving state on the basis of its lsquopresumedrsquo continuing consent

Similarly during its work on codification of consent as a lsquocircumstance precludingwrongfulnessrsquo the International Law Commission seemed hostile to the idea ofpresumed consent While Article 20 of the ARSIWA adopted in 2001 requires onlylsquovalid consent by a Statersquo without setting any formal conditions the commentaryemphasizes that lsquo[c]onsent must be freely given and clearly established It must beactually expressed by the State rather than merely presumed on the basis that the Statewould have consented if it had been askedrsquo126

While the IDI was well aware of this hostility of the Commission to presumedconsent the 2011 IDI resolution on military assistance on request set no formal con-ditions only mentioning that lsquo[t]he request shall be valid specific and in conformity

124 Corten supra note 8 at 272ndash3125 Definition of Aggression UN Doc ARES3314(XXIX) 14 December 1974 para 3(e)126 Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries 2001 YILC Vol II

(Part I) UN Doc A5610 at 73 para 6 This is consistent with the previous position of the Commissionaccording to which consent in order to produce any legal effects must be lsquovalid in international law clearlyestablished really expressed [which precludes merely presumed consent] internationally attributable tothe State and anterior to the commission of the act to which it refersrsquo (Report of the International LawCommission on the Work of its Thirty-First Session 1979 YILC Vol II(2) UN Doc A3410 at 112 para 11



with the international obligations of the requesting Statersquo127 This is probably relatedto the absence of formalism in international law what is of paramount importanceis the will of states not specific forms Oliver Corten who clearly rejected the ideaof lsquoimplied authorizations to use forcersquo by the UN Security Council128 accepts thetheory of lsquopresumed consentrsquo in relation to military intervention He bases thisacceptance on the position of the International Court of Justice in the 2005 ArmedActivities on the Territory of the Congo (DRC v Uganda) Judgment where the Court foundthat the DRC had consented to Ugandarsquos military intervention through tolerance orabsence of protest129 For Corten lsquo[i]t is very clear in view of [the reasoning of theCourt] that consent may be given in a completely informal manner a simple toler-ance may suffice to demonstrate its existence in the particular circumstances of thecasersquo130

Beyond the Armed Activities case one could probably mention the case of theUS drone strikes in Pakistan The government of Pakistan never lsquoinvitedrsquo the US orexpressed publicly formal consent for the drone strikes against Al-Qaeda and Talibanleaders and fighters on its territory since 2004 On the contrary it took the publicposition that it was opposed to these drone strikes131 Several organs within Pakistansuch as members of parliament or the Pakistani high court strongly criticizedthe strikes but it was only in August 2014 that the government officially filed aprotest to the US considering the strikes as a lsquoviolation of Pakistanrsquos sovereignty andterritorial integrityrsquo and calling for lsquoan immediate end to US drone strikesrsquo132 Thisled Michael Lewis to conclude that lsquoup until now the US was apparently operatingunder continued passive consent based upon the behaviour of the military andISIL which were either cooperating or at least not interfering with the strikesrsquo butthe protest of June 2013 should be considered as an lsquoofficial withdrawal of consentfor the drone strikesrsquo by Pakistan133 A few months later several sources revealedthe existence of secret memos showing that Pakistan endorsed US drone strikes forseveral years134

127 Supra note 19 Art 4(2)128 Supra note 8 at 348 ff129 Ibid at 272ndash3 The Court talked about the lsquoabsence of any objection to the presence of Ugandan troops in

the DRCrsquo by the DRC government and concluded that lsquo[t]he source of an authorization or consent to thecrossing of the border by these troops antedatedrsquo a written Protocol concluded in April 1998 (paras 46ndash7 ofthe Judgment)

130 Ibid131 T Nasser lsquoDo Drone Strikes Violate International Law Questioning The Legality of US Drone Strikes

and Analyzing The United Statesrsquo Response to International Reproach Based on The Realism Theory ofInternational Relationsrsquo (2015) 24 Southern California Interdisciplinary Law Journal 289 at 311

132 lsquoPakistan summons US ambassador to protest against latest drone killingsrsquo The Guardian 8 June 2013available at wwwtheguardiancomworld2013jun08pakistan-us-drone-killings

133 M Lewis lsquoPakistanrsquos official withdrawal of consent for drone strikesrsquo 10 June 2013 availableat opiniojurisorg20130610guest-post-pakistans-official-withdrawal-of-consent-for-drone-strikes OtherAmerican scholars nonetheless took the position that consent was not necessary and that the argument ofself-defence was sufficient to provide a legal justification for the drone strikes See for example J PaustlsquoSelf-Defense Targeting of Non-State Actors and Permissibility of US Use of Drones In Pakistanrsquo (2010) 19Journal of Transnational Law and Policy 237

134 lsquoSecret memos show Pakistan endorsed US drone strikesrsquo BBC 24 October 2013 available atwwwbbccomnewsworld-asia-24649840 See also Z Ahmed lsquoStrengthening standards for consent TheCase of US Drone Strikes in Pakistanrsquo (2015) 23 Michigan State International Law Review 460 at 513 See alsoSA Shah International Law and Drone Strikes in Pakistan (2014)



The lsquoPakistani precedentrsquo therefore seems to confirm that for several politicalreasons governments might choose not to render public the existence of consentfor a military intervention Let us now turn to the situation in Syria to check whetherthe situation there compares with the lsquoPakistani precedentrsquo

423 lsquoPassive consentrsquo during the first year of the US-led interventionAny comparison between Syria and Pakistan immediately runs against a majorobstacle in the case of Pakistan the US never challenged the legitimacy of thePakistani government In the case of Syria on the contrary the governments ofall states participating in the US-led coalition strongly challenge the legitimacy ofthe Syrian government constantly asking President Bashar al-Assad to step downin order to open the way to a political transition and are refusing any substantialcooperation with the Syrian regime while Bashar al-Assad is still in power Thiscreates a constant animosity between the two sides which could hardly let anyspace for a theory of even lsquopassiversquo consent

When US President Barack Obama announced his intention to bomb ISIL targetsin Syria on 10 September 2014 Syria strongly reacted The Syrian Minister of NationalReconciliation declared that lsquoany action of any kind without the consent of the Syriangovernment would be an attack on Syriarsquo135 Similarly Russia and Iran declared thatlsquostrikes by the US armed forces against ISIL positions in Syria without the consent ofthe legitimate governmentrsquo will be lsquoin the absence of a UN security council decision an act of aggression a gross violation of international lawrsquo136

However on 24 September 2014 just one day after the first strikes in Syria thesame Syrian minister declared that the airstrikes launched by the internationalcoalitions against ISIL in Syria were lsquogoing in the right directionrsquo and that the Syriangovernment was kept informed by the US137

The passivity of the Syrian government in the following months (until September2015) could indicate that while following closely the situation and fearing aneventual use of the airstrikes against the regime it was not opposed to the strikes ofthe US-led-coalition against ISIL which was a relief for the government forces In aletter sent to the UN Security Council in June 2015 for instance Syria emphasizedthat lsquoit is prepared to cooperate bilaterally and at the regional and internationallevels to combat terrorismrsquo and that

it supports any genuine international effort aimed at countering the scourge of terror-ism in all its forms and manifestations provided that in doing so every effort is made

135 lsquoIsis air strikes Obamarsquos plan condemned by Syria Russia and Iranrsquo The Guardian 12 September 2014 availableat wwwtheguardiancomworld2014sep11assad-moscow-tehran-condemn-obama-isis-air-strike-plan

136 Ibid137 lsquoDamas se felicite des raids contre lrsquoEI en Syriersquo Le Figaro 24 September 2014 The Syrian rebels also welcomed

the USA-led intervention On 23 September 2014 the President of the Syrian Coalition said lsquoTonight theinternational community has joined our fight against ISIS in Syria We have called for airstrikes such as thosethat commenced tonightrsquo National Coalition for Syrian Revolution and Opposition Forces Press Release 23September 2014 available at enetilaforgpressairstrikes-against-isis-positions-inside-syriahtml



to safeguard civilian lives respect national sovereignty and adhere to internationalinstruments138

This passivity of the Syrian government is to be compared with its strong reactionconcerning other cases of military interventions on its territory In December 2014for example Syria claimed that lsquoIsrael committed yet another criminal aggressionagainst [Syriarsquos] territory and sovereigntyrsquo by bombing two civilian areas in Syria139

In February 2015 Syria also condemned as lsquoflagrant aggressionrsquo the intervention ofthe Turkish army on Syrian territory aimed to lsquorelocate the tomb of Sulayman Shahrsquowithout the consent of the Syrian government140

It would probably be an exaggeration to conclude on the basis of these elementsthat there was clear lsquopassive consentrsquo during this first year of the US-led airstrikesproviding a sufficient legal basis for the operations but the absence of protest bySyria could lead towards this idea This situation changed dramatically in September2015

424 The end of passive consent since September 2015Already fragile in the previous period the theory of passive consent seems to be inbig trouble since the 17 September 2015 when Syria sent a letter to the UN SecurityCouncil concerning the lsquomilitary measures against the Syrian Arab Republicrsquo carriedout by some states and the legal justifications advanced for them Syria explains thatthese states

invoke a distorted reading of the intention of Article 51 of the Charter of the UnitedNations Syria has not made any request to that effect If any State invokesthe excuse of counter-terrorism in order to be present on Syrian territory without theconsent of the Syrian Government whether on the countryrsquos land or in its airspaceor territorial waters its actions shall be considered a violation of Syrian sovereigntyCombating terrorism on Syrian territory requires close cooperation and coordinationwith the Syrian Government in accordance with the counter-terrorism resolutions ofthe Security Council141

Similarly a few days later Syria said during a debate in the UN Security Councilthat

The actions of the United Kingdom and France in Syrian air space are contrary to theCharter of the United Nations and international law as well as a flagrant violationof Syriarsquos national sovereignty Those who genuinely wish to combat terrorism mustcoordinate their efforts with the Syrian Government 142

138 UN Doc S2015371 1 June 2015 Identical letters dated 25 May 2015 from the Permanent Representative of theSyrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council

139 UN Doc S2014874 8 December 2014 Identical letters dated 8 December 2014 from the Permanent Representativeof the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the SecurityCouncil

140 UN Doc S2015132 25 February 2015 Identical letters dated 23 February 2015 from the Permanent Representativeof the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the SecurityCouncil


142 UN Doc SPV7527 30 September 2015 Maintenance of International Peace and Security at 30



These strong protests by Syria only focused at that time on the actions and legal ar-guments used by three states just joining the coalition namely the United KingdomAustralia and France ndash not the other members of the US-led coalition In subsequentletters nonetheless it became clear that Syria was strongly opposed to the airstrikesand legal arguments used by all members of the US-led coalition143 Indeed sinceSeptember 2015 a period coinciding with the beginning of the Russian airstrikesrequested by the Syrian government Syria sent to the UN Security Council severalother letters strongly and continuously protesting against the airstrikes In Novem-ber 2015 for instance Syria protested that lsquo[a]ircraft of the so-called internationalcoalition led by the United States of America continue to violate the sovereignty ofSyria under the pretext that they are targeting the Islamic State in Iraq and the Le-vant (ISIL) terrorist organizationrsquo144 A month later Syria qualified a specific airstrikeagainst a Syrian Arab Army camp as a lsquoblatant aggression by coalition forcesrsquo145 InJanuary 2016 it filled a new protest making a contrast between the US-led inter-ventions and the Russian interventions lsquoAt a time when the coalitionrsquos futility andhypocrisy have become clear to see the Syrian Arab Army and the Russian air forceare waging relentless war on the terroristsrsquo146

Although these protests leave no room for the theory of lsquopassive consentrsquo147

three observations can be made First while Syria strongly opposes in these lettersthe distortion of the self-defence provisions of the Charter and the lsquounwilling orunablersquo theory advanced by some of the intervening states at no point does itchallenge the legality of a military intervention on the basis of consent On thecontrary in all these letters Syria clearly insists on the need for consent from theSyrian Government and consultationcooperation with the Syrian authorities forany anti-terrorism military action undertaken on its territory This means that if forexample some of the intervening states decide in the future to consult secretly withthe Syrian government the passive consent theory could be revived148

Second while Syria protests in these letters against what it calls lsquoa flagrant viola-tion of its national sovereigntyrsquo by the US-led coalition it does not call for an end tothe airstrikes against ISIL Despite these protests Syria thus does not seem hostile to

143 See for example UN Doc S2015727 22 September 2015 Identical letters dated 21 September 2015 from thePermanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General andthe President of the Security Council using a similar language and including this time also the US and Canada

144 UN Doc S2015851 16 November 2015 Identical letters dated 9 November 2015 from the Permanent Representativeof the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the SecurityCouncil


146 UN Doc S201646 22 January 2016 Identical letters dated 18 January 2016 from the Charge drsquoaffaires of thePermanent Mission of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and thePresident of the Security Council

147 See also R Van Steenberghe lsquoFrom Passive Consent to Self-Defence after the Syrian Protest against the US-ledCoalitionrsquo EJIL Talk 23 October 2015 available at wwwejiltalkorg13758-2

148 Syria also insists that lsquothe only productive way to combat terrorism remains the establishment of an effectiveinternational coalition within the framework of international law and with the participation of concernedStates particularly Syria which is the main party confronting terrorism in the regionrsquo UN Doc S201572722 September 2015 Identical letters dated 21 September 2015 from the Permanent Representative of the Syrian ArabRepublic to the United Nations addressed to the Secretary-General and the President of the Security Council



the airstrikes against ISIL while desperately wishing to move these airstrikes undera new legal regime of consent and coordination with the Syrian government A kindof lsquoconditional invitationrsquo is thus in place

Would the states participating in the US-led coalition be able to accept thisinvitation After the 13 November 2015 Paris terrorist attacks some states especiallyFrance gave the impression that they were adopting a more flexible approach byconsidering cooperating with the Syrian governmental army149 The US the Arabpartners of the coalition and the majority of other states remain nonetheless hostileto any cooperation with President Bashar al-Assad As of early February 2016 theUN leads international efforts for an agreement between the Syrian rebels andgovernment for a process of political transition combined with a ceasefire TheUN Security Council expressed in Resolution 2254 of 18 December 2015 its strongsupport

for a Syrian-led political process that is facilitated by the United Nations and within atarget of six months establishes credible inclusive and non-sectarian governance andsets a schedule and process for drafting a new constitution and for free and fairelections pursuant to the new constitution to be held within 18 months 150

The UN Security Council also noted that the proposed ceasefire lsquowill not applyto offensive or defensive actionsrsquo against ISIL the Al-Nusrah Front lsquoand all otherindividuals groups undertakings and entities associated with Al Qaeda or ISIL andother terrorist groups rsquo151

It is therefore not excluded that if the process of political transition succeeds(despite the current difficulties) and if a new government is formed under thisprocess the USA-led coalitionrsquos airstrikes against ISIL could come under the umbrellaof the theory of intervention by invitation But for the time being this is clearly notthe case

5 CONCLUSIONS

Five main conclusions can be drawn from the previous analysis First the theoryof intervention by invitation has been broadly used by different states in order tojustify their military operations in Iraq Syria and Libya All 11 intervening statesin Iraq (nine members of the US-led coalition as well as Russia and Iran) act underthe legal umbrella of consent of the Iraqi government In Libya Egypt undertookairstrikes against ISIL with the approval of the internationally recognized lsquoTobruk

149 lsquoSyrie Fabius envisage drsquoassocier lrsquoarmee de Bachar al-Assad aux interventions au solrsquo Les Echos 27 November2015

150 UN Doc SRES2254 18 December 2015 para 4151 Ibid para 8



governmentrsquo And in Syria both Iran and Russia relied exclusively on the legal basisof intervention by invitation

Second to the extent that these military interventions were consensual and tar-geted ISIL and other UN-designated terrorist groups their legality has not beenchallenged by any state On the contrary strong criticisms have marked militaryoperations carried out by invitation but not targeting lsquoterrorist groupsrsquo such as thealleged Russian strikes against the lsquoSyrian moderate oppositionrsquo lsquoCounter-terrorismrsquooperations without consent of the concerned governments also created strong reac-tions as shown by the case of Turkish incursions in Iraq

Third in all the cases where intervention by invitation has been used as a legaljustification the arguments advanced by intervening states and the reactions of theinternational community seem to confirm the purpose-based approach of consen-sual intervention Intervening states did not claim a lsquoright to intervene in a civil warrsquobut argued that what justifies their intervention is the existence of both a request bythe government and a legitimate purpose fighting ISIL and other terrorist groupsThe different reactions show an unwillingness of the international community torecognize a general right to intervention in a civil war The whole debate then turnsaround the adequacy of the legitimate purpose invoked by intervening states withtheir real intentions and their actions on the battlefield

Fourth it is impossible to use the theory of intervention by invitation in relationto the strikes of the US-led coalition in Syria Syria never requested such an inter-vention and the ten participating states never asked for Bashar al-Assadrsquos consentThe controversial theory of lsquopassive consentrsquo and the lsquoPakistani precedentrsquo couldbe used to some extent but not after September 2015 when Syria filed protests tothe UN Security Council denouncing these strikes as a lsquoflagrant violationrsquo of itssovereignty

Finally the efforts of the international community to find consensual solutionsto the dramatic conflicts in Syria Libya and Iraq could offer new possibilities ofconsensual interventions against terrorist groups In Iraq the international com-munity is working towards reconciliation between Sunnis and Shiites (and Kurds)in order to defeat ISIL In Libya the international community and the UN SecurityCouncil used the possibility of intervention by invitation as a tool in order to endthe civil war and achieve the formation of a government of national unity In Syriathe UN Security Council called for a ceasefire and a political transition agreementbetween the Syrian rebels and government so that all moderate Syrian actors andintervening states could act together in order to eradicate ISIL and other terroristgroups

If these dreamed political solutions succeeded in the future a consensus betweenworld powers would probably be reached allowing the UN Security Council to givea use of force mandate to intervening states to fight terrorism At present howevernot only are we still far from such political solutions but it is also fairly clear thatsuch a use of force mandate under Chapter VII does not exist yet152 Intervention by

152 UN Doc SRES2249 of 20 November 2015 para 5 lsquoCalls upon Member States ( ) to take all necessarymeasures in compliance with international law ( ) on the territory under the control of ISIL ( ) in



invitation could therefore remain an essential legal argument used by several statesin order to justify their military operations in Iraq Syria and Libya

Syria and Iraq to redouble and coordinate their efforts to prevent and suppress terrorist acts ( )rsquo But thisresolution was not adopted under Chapter VII and lsquodoes not actually authorize any actions against IS nor doesit provide a legal basis for the use of force against IS either in Syria or in Iraqrsquo D Akande and M Milanovic lsquoTheConstructive Ambiguity of the Security Councilrsquos ISIS Resolutionrsquo EJIL Talk 21 November 2015 availableat wwwejiltalkorgthe-constructive-ambiguity-of-the-security-councils-isis-resolutioncomments


1 Introduction

11 Methodological difficulties linked to the complexity of the conflicts

12 The legal framework The purpose-based approach to intervention by invitation

13 Aims of this article

2 Intervention in Iraq a confirmation of the purpose-based approach

21 The clear and undisputable legal basis of consent

22 Consequences of the absence of consent The case of Turkish incursions

23 Intervention against terrorism or intervention in a civil war

3 Libya intervention by invitation as a political tool

31 Consent as the legal basis for the Egyptian strikes against the ISIL

32 No legal justification advanced by the US

33 The political use of intervention on request

4 Intervention in Syria the dire straits of consent

41 Express consent as the legal basis for intervention by Russia and Iran

411 Russia and Iran relied on the theory of intervention by invitation

412 The validity of the invitation

413 Russian intervention A challenge to the purpose-based approach

42 The US-led intervention and the murky waters of passive consent

421 The impossibility to use the theory of military intervention by invitation

422 Does international law accept the theory of lsquopassive consentrsquo

423 lsquoPassive consentrsquo during the first year of the US-led intervention

424 The end of passive consent since September 2015

5 Conclusions


common as self-defence The use of this argument raises important problems andnot only in relation to the legitimacy of the inviting government or the validity ofconsent

This article will focus on the multiple external interventions in Iraq Libya andSyria The objective will be twofold On the one hand I will assess if consent is avalid and sufficient legal basis for the multiple interventions undertaken by differentcountries on the territory of these states since August 2014 On the other hand I willexamine what is the influence of these cases in relation to the evolution of some legalprinciples such as volenti non fit injuria or the principle of non-intervention in civilwar and internal strife Before undertaking this research it is necessary to note somemethodological difficulties linked to the complexity of the conflicts (Section 11)and to recall the legal framework of intervention by invitation against which thepresent analysis will be conducted (Section 12)

11 Methodological difficulties linked to the complexity of the conflictsThe task of this article is far from easy for at least three reasons Firstly as moreand more jihadi groups in different countries aligned themselves with or pledgedallegiance to ISIL2 the global fight against the terrorist group expanded raisingissues of consent in other cases of intervention such as in Afghanistan3 Withoutneglecting the phenomenon of intervention against ISIL-affiliated groups in othercountries this article will focus on the interventions in Iraq Syria and Libya whereISIL is particularly strong and was able to establish territorial control over portionsof the territories of these three states

Secondly the situation in Iraq Syria and Libya is evolving constantly and veryrapidly This article covers developments of the situation as far as possible up to 3February 2016

Thirdly even by introducing such geographical and time limits to this researchthe task remains highly complicated because of the extreme complexity of theconflicts and external interventions in Iraq Syria and Libya The Syrian civil warfor example has raged for more than five years killing 250000 people and dis-placing from their homes 11 million others and is underpinned by a particularlycomplex pattern of alliances and enmities4 What started as anti-government andpro-democracy protests in March 2011 quickly escalated into a full-scale civil warbetween forces loyal to President Bashar al-Assad and rebels opposed to his rule whothemselves are divided into various factions It is against this chaotic backgroundthat ISIL was able to spread and conquer several Syrian cities On an international

2 lsquoFrom Syria to Bosnia Isis and its affiliates around the worldrsquo The Guardian 3 July 2015 available atwwwtheguardiancomworld2015jul03isis-and-affiliates-around-the-world

3 In January 2016 the USA carried out at least a dozen operations including commando raids andairstrikes against militants in Afghanistan aligned with ISIL (several thousand are estimated to bepresent in this country) The intervention took place with the consent of the government and thePresident of Afghanistan Ashraf Ghani thanked the USA See lsquoUS Broadens Fight Against ISISWith Attacks in Afghanistanrsquo The New York Times 31 January 2016 available at wwwnytimescom20160201uspoliticsus-broadens-fight-against-isis-with-attacks-in-afghanistanhtml_r=0

4 See for example lsquoWho backs whom in the Syrian conflictrsquo The Guardian 2 December 2015 available atwwwtheguardiancomworldng-interactive2015oct09who-backs-whom-in-the-syrian-conflict
















































































































































































































































































































































5 CONCLUSIONS


















1 Introduction






















5 Conclusions















































































































































































































































































































































5 CONCLUSIONS


















1 Introduction






















5 Conclusions














1 Introduction






















5 Conclusions

militaryinterventionsagainstisiliniraq, … · syriaandlibya,andthelegalbasisof consent karine...

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